Collapsed, No; Room for Improvement, Yes

Last week, Bill had a post on the book by the late William Stuntz titled "The Collapse of the American Judicial System." The book had been reviewed by Justice Stevens.

Today, Paul Cassell has a review of the book in the WSJ. From Cassell's review, the book may be better than one would infer from its unfortunate title.

Perhaps aware that "collapse" in the book's title requires
justification, Mr. Stuntz begins by reviewing some statistics. As he
shows, in the 1950s, 1960s and early 1970s, amid the largest crime wave
in American history, the U.S. prison population declined. Imprisonment
rates plummeted to some of the lowest ever seen in the modern Western
world. High-crime neighborhoods, as Mr. Stuntz puts it, were "abandoned
to their fate."

* * *

Mr. Stuntz readily acknowledges what many legal scholars do not:
America's current lock-'em-up philosophy has dramatically helped to
reduce urban crime.... Even so, Mr. Stuntz counts these declines as a pyrrhic victory, given
that violence per capita in the U.S. today remains significantly higher
than in 1950.

Well, that's refreshing. When anyone writes on criminal sentencing today, the first thing I want to know is whether he is aware of what an unmitigated disaster the soft sentencing policies of the 1960s and early 1970s were.

Mr. Stuntz powerfully argues that [Warren Court procedural] decisions
have perversely worsened inequality in the criminal-justice system. The
Miranda rule,
for example, gives sophisticated suspects--mainly recidivists and
white-collar defendants--the ability to "lawyer up" and avoid questioning
altogether. Many other suspects--including the innocent but poor--waive
their rights and receive less protection than they did before Miranda.

These excessive procedures contributed
to a new punitiveness in criminal sentencing, Mr. Stuntz says. With
fewer violent criminals successfully prosecuted under Warren-court
restrictions, those who are convicted are incarcerated longer. And
because of the difficulty of finding witnesses willing to testify
against gang members and other violent criminals, easily proven
"surrogate" crimes (namely, drug possession) are punished more harshly.

"The Collapse of American Criminal Justice" concludes that our system
suffers "from the rule of too much law and the wrong kind of politics."
Mr. Stuntz recommends a host of reforms, including decentralization
that would encourage local control responsive to local crime. He also
argues for expanding city police forces--because the increased police
presence would discourage the commission of crimes.

But he seems to back away from his
argument that excessive proceduralism is part of the problem. While
critiquing decisions such as Mapp and Miranda, Mr.
Stuntz never urges that they be overturned or restructured, even though
such changes could lead to the decentralized decision-making that he
supports. Instead, he singles out for overruling Supreme Court
precedents limiting equal-protection argument by defendants. He targets United States v. Armstrong,
for example, which barred drug dealers from arguing that prosecutors
must be racially discriminating when statistics indicate disparities in
charges being brought. But overturning the law would lead to precisely
the kind of procedural litigation that Mr. Stuntz deplores.

Nonetheless, the overarching themes of "The Collapse of American
Criminal Justice" deserve wide discussion, and the book as a whole can
be rightly seen as the capstone to a distinguished legal career.
Americans may debate whether our criminal-justice system has truly
collapsed, but few would argue that it can't be improved.

I have a lot of respect for Paul's judgment. If he says the book is worth reading and discussing, then it surely is.

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3 Comments

Any assessment of the criminal justice system must begin with its two central facts over the last generation: Imprisonment has gone way up, and, in significant part because of this, crime has gone way down. To start anywhere else is to blink reality.

I have not read the book yet. Prof. Stuntz was an open-minded person. But the danger, reflected in the Stevens review and some accounts of it, is that the parts of his book favorable to criminals will be trumpeted, while the rest get hustled under the rug.

And to be honest, Stuntz himself seems to be selective in his critique of the system, emphasizing his (correct) dismay with procedural excess mostly where that excess damages the defendant, and being more indulgent where it damages the prosecution.

It may possibly be "pyrrhic", desperate, heroic, appropriate, and incomplete. However, it is neither ineffective or improper.

Compared with any time in American history, there are fewer fathers at home, less morality at school, and even lesser repentance by "we the people" for obvious iniquities.

In 1863, Lincoln and the U.S. Senate similarly concluded that "we have forgotten God", and were ill-advised to do so.

In 2011, if we as individual Americans do not change our personal morality for the better, we as a society will continue to rely increasingly upon law enforcement and incarceration, and gain only "pyrrhic" victories.

Well, according to me, room for improvement is possible everywhere. Any kind of calculation of the criminal justice systems and jail management systems must start with the reality of today. Along with crimes, the population of criminals has also increased and to be honest, it is important to take the help of technology such as community corrections software to manage the offenders in order to manage the prisons and prisoners.